In Defense of Sean Penn's Speaking Out:How Celebrity Activists Can Serve as A Modern Bulwark of Our Constitutional System

Sean Penn has been criticized, lately, for his strong, frequent attacks on the Iraq War. Critics have suggested that Penn's venture into politics takes him out of his element, and out of his league: He ought to stick to acting.

But in a recent interview with The Boston Globe, Penn responded that "it's an absolutely stupid notion that you should take the title of someone's profession and attach it to what they should not do." Plainly, he sees it as entirely consistent to be both an actor, and an activist.

Who's right - Penn, or his critics? In this column, I will argue that Penn has the better of the debate. Indeed, I will contend that when Penn - and other celebrities like him -- speak out, they are not only well within their First Amendment rights; they also serve the health of our constitutional system.

Thus, not only is Penn sufficiently qualified to speak out, I will suggest, his status ought to virtually oblige him - and others like him -- to do so.

The History of the Controversy Over Penn's Activism

Activism is a tradition in the Penn family - passed down to Sean by his father Leo. Leo Penn, a writer, director, and actor, was blacklisted during the McCarthy era. When he was called before the notorious House Un-American Activities Committee, and asked to expose Hollywood Communists, Leo Penn refused to name names. With Leo's influence, Sean grew up politically and socially aware. Although his political roots trace back to the 1970s, it is Sean's recent activism that has gained notoriety.

Criticism of Sean Penn began in earnest in October 2002, when he published an open letter to President Bush in the Washington Post. (The letter appeared as a paid political advertisement, rather than a reader letter or an Op-Ed). In the open letter, Penn urged the President to support the reintroduction of weapons inspectors into Iraq.

In December 2002, Penn visited Baghdad. As a result he was accused by many of being unpatriotic - even treasonous.

In May 2003, Penn published another open letter - this time, in the New York Times. (Again, it was a paid political advertisement.) This time, Penn complained that he and other Americans were seeing "dead young Americans," and "dead Iraqi civilians," but "no WMDs."

Penn also noted that - far from being an act of treason -- his goal in traveling to Iraq had been "to replace television images with a real sense of place and people (if only the kind one gets visiting anywhere for the first time)." His impression of Baghdad was this: "the most decimated, starved, diseased and polluted place I had ever witnessed."

In the end, Penn turned out to be right in his call for more inspections; right about the absence of weapons of mass destruction; and not only right, but prescient about the ever more perilous condition of Iraq. (Granted, more inspections might not have helped matters - especially if Saddam continued to act suspiciously. But, on the other hand, they might have helped establish that Iraq was unlikely to hold weapons of mass destruction, or at least helped convince other nations that the U.S. sought to act based on evidence, rather than eagerness to go to war.)

Yet rather than apologize, and admit Penn was correct, his critics have only mocked him more harshly.

Most prominently, the 2004 movie "Team America: World Police" made merciless fun of Penn's trip, and his activism. In the movie, a puppet plainly representing Penn remarked, "Last year, I went to Iraq. Before Team America showed up, it was a happy place. They had flowery meadows, and rainbow skies, and rivers made of chocolate where the children danced and laughed and played with gumdrop smiles."

On October 6, 2004, Penn responded with a letter offering to take "Team America: World Police" creators Trey Parker and Matt Stone on another trip to Iraq with him. But Parker and Stone only made fun of the offer.

Indeed, they suggested that with his offer to take them to Iraq, Penn was simply reiterating his original "I went to Iraq" boast. And Parker and Stone mocked that boast, cracking, "I went to the Grand Canyon once, but that doesn't make me an expert."

Their point raises two interesting questions: First, was Penn an expert? Second, did he need to be?

In the Age of Embedded Reporters, A Maverick Ought to Be Welcome

I believe Penn had all the expertise and experience he needed to speak out. Interestingly, had Penn been a writer, rather than an actor, he might not have faced as much criticism. Yet actors - who interpret and give life to writers' words - are, in a sense, also writers.

Similarly, had Penn been an opinion journalist - even one in his first year at a newspaper -- he presumably would not have been criticized at all; rather, he would have been seen as doing his job. But are we so sure that Penn's opinion is less informed than that of a young commentator? Perhaps professional affiliations should not be the be-all-and-end-all of our decision of who, as a society, we would like to listen to.

Finally, Penn had, indeed, visited Iraq - which was more than many newspaper commentators had done. And that visit was all the more significant because it was independent; Penn spoke to Iraqis, to human rights workers, and to U.N. representatives. In contrast, "embedded" reporters spoke mostly to the units to which they were assigned. The unprecedented access granted to "embeds" by the military came with constraints: negative reporting on the military could result in a denial of any further access, according to some accounts - for instance, that of Michael Massing in the New York Review of Books.

Especially in light of the tightly controlled media access to Iraq, Penn's countervailing experiences, and accounts, are all the more valuable. But do these experiences actually amount to something - or are they, as Parker and Stone suggest, simply a meaningless form of tourism, like a visit to the Grand Canyon?

Put another way, did Penn learn anything substantive from his visit to Iraq about the issues he came to explore - the justification for, and likely costs of, the Iraq war? It seems likely that he did. After all, he spent time touring hospitals and speaking to well-informed people - many of whom were, in fact, professionals in their fields. If we would not dismiss the views of the U.N. and UNICEF representatives who spoke to Penn, why should we dismiss Penn's own views, developed through these conversations?

The Modern Status of Celebrities Is Similar to the Status of "Intermediate Associations" Active At America's Founding

Readers may accept all these arguments, but still feel there is a mismatch; they may feel, that is, that Penn has a degree of access, and a podium, that are not in line with his experience and expertise. But consider, by comparison, the immense power jurors rightly have - without any special qualifications at all.

Granted, Penn may not be an expert on Iraqi history or culture, or on diplomacy or war. But like a juror, he has other important qualities: utter independence, and the lack of a direct stake in the debate.

Once we've heard from the interested parties - the government that is defending its decision to go to war; the newspapers that must sell copies; the news channels desperate for access; political organizations that must be responsive to contributors - it is crucial to be able to hear from someone who is entirely unbeholden.

Penn has repeatedly said that his interest in the Iraq War is as a citizen and a father; in this sense, he has more in common with his fellow Americans than many professional journalists do. Professional journalists' interest in investigating and reporting the facts relating to the Iraq War is, after all, part of their job; they are responsive to editors, and beyond that, to media corporations; and their work - however worthwhile - cannot fairly be called entirely independent.

As Yale Law professor Akhil Amar has explained, our Constitution accords a sacred place to "intermediate associations" -- the church, the militia (in the sense of a defensive, domestic group of arms-bearing civilians, rather than a modern military), and the jury. It does so based on the belief that such independent associations - which stand between government and the individual - help guarantee freedom.

After all, government cannot simply make criminals of its political enemies when juries have the final power to determine guilt or innocence. And government cannot simply command the populace to believe a certain way when a church -- or synagogue, or mosque - offers a contrary view and influence.

Like these intermediate associations, a modern celebrity wields power independent from that of the government - or, really, any other power source. Ever since the end of the "studio system," actors like Penn have wielded power that is independent of corporate power; they can choose with whom they will, and will not, collaborate.

The government can imperil that power - as Leo Penn learned when he was a victim of the Hollywood blacklist. But until and unless McCarthyism returns, that power stands. And as long as the podium exists, it ought to be used - for what its speakers lack in expertise, they make up in independence.

If We Applaud Actors' Charity, We Ought Also to Applaud Their Passionate Politics

Top Hollywood actors' monetary power is vast: Actress Julia Roberts donated $2 million to aid September 11 victims. Actress Angelina Jolie has decided to tithe one third of the millions she makes to charitable purposes, in addition to becoming a Goodwill Ambassador for the U.N.'s refugee agency. Actress Sandra Bullock's million-dollar donation to tsunami relief dwarfed that of some nations.

All of these contributions are universally applauded. But if we praise these donations, why do we condemn celebrities whose passions and beliefs bring them to more controversial positions and actions?

Shouldn't we praise the courageous actors who dare to be political - like Penn - as much as, or more than, those who are generous enough to be charitable?

It's worth remembering, too, that it's not an either/or choice - just as giving to charity does not excuse one from voting, a celebrity's noncontroversial charitable donations do not excuse her from the obligation to use her voice, gifts, and status to serve the best social good, as she conceives it.

How can those who admire Ronald Reagan at the same time scoff at Sean Penn? It wasn't formal qualification or professionalization that allowed Reagan - or popular California governor Arnold Schwarzenegger, for that matter -- to bring his passions to politics; it was access, money, and power. Penn has the same access; he too is acting on sincere beliefs, to the best of his ability

Before we dismiss celebrity activism, then, we should consider its unique benefits: What other individuals have the podium and the power to speak out in an entirely individualistic way - beholden to no one - and be heard?

Ideally, more of us should have better podiums, but that is no reason to encourage those who already have them to stay silent.

Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden's first novel, 3, was published recently. In reviewing 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes MP3 and text downloads of the novel's first chapter